[2023] KEELC 17779 (KLR)
The court found that the Taxing Master's assessment of instruction fees at Kshs 200,000 for the declaratory relief was appropriate, as it reflected the bar minimum for a sale agreement of Kshs 5,000,000. Due to the complexity of the matter, the court increased the instruction fee to Kshs 275,000. The award of Kshs...
Source-derived case information.
- Citation
- [2023] KEELC 17779 (KLR)
- Parties
- Plaintiff: Rael Moraa Ondika; Defendant: Swanya Ltd; Defendant: Zadok East Africa Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Taxation of Costs and Related Prayers
- Outcome
- Ruling delivered; costs partially upheld and partially adjusted.
- Judges
- JM Kamau
- Legal Topics
- Sale of Land, Rescission of Contract, Title Cancellation, Costs Taxation, Injunctions, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Moraa Ondika
Plaintiff
Swanya Ltd
Defendant
Zadok East Africa Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Taxation of Costs and Related Prayers
Legal Issues
- 1 Whether the sale agreement for Gesima Settlement Scheme/1075 should be rescinded and the title deed cancelled.
- 2 Whether the 2nd defendant is the lawful proprietor of the property and entitled to vacant possession, eviction, and a permanent injunction.
- 3 Whether the instruction fees and other costs awarded by the Taxing Master should be interfered with or upheld.
Ratio Decidendi
The court found that the Taxing Master's assessment of instruction fees at Kshs 200,000 for the declaratory relief was appropriate, as it reflected the bar minimum for a sale agreement of Kshs 5,000,000. Due to the complexity of the matter, the court increased the instruction fee to Kshs 275,000. The award of Kshs 300,000 for injunction, eviction, and vacant possession in the counterclaim was upheld as reasonable. For the getting up fee, the court determined it should be one third of Kshs 350,000, amounting to Kshs 120,000, and taxed off Kshs 30,000. The court declined to interfere with the other items taxed by the Taxing Master, finding no basis to disturb the exercise of discretion. The...
Court Disposition
Ruling delivered; costs partially upheld and partially adjusted.
Orders
- Instruction fee for declaration set at Kshs 275,000.
- Instruction fee for injunction, eviction, and vacant possession set at Kshs 300,000.
Full Case Text
Judgment text and source record
20 paragraphs
Ondika v Swanya Ltd & another (Environment & Land Case 69 of 2021 & Environment & Land Miscellaneous Case 1 of 2023 (Consolidated)) [2023] KEELC 17779 (KLR) (7 June 2023) (Ruling)
Neutral citation: [2023] KEELC 17779 (KLR)
Republic of Kenya
In the Environment and Land Court at Nyamira
Environment & Land Case 69 of 2021 & Environment & Land Miscellaneous Case 1 of 2023 (Consolidated)
JM Kamau, J
June 7, 2023
(Formerly at Kisii ELC Case No. 240 Of 2016)
Between
Rael Moraa Ondika
Plaintiff
and
Swanya Ltd
1st Defendant
Zadok East Africa Ltd
2nd Defendant
Ruling
1. Under Item No 1, the Plaintiff prayed for a Declaration that the Sale Agreement executed between the parties for sale of a property worth Kshs 5,000,000/= be rescinded, returned and cancellation of Title Deed in respect of Gesima Settlement Scheme/1075. She was also defending a counterclaim by the Defendant that the 2nd Defendant is the lawful proprietor of the said parcel of land, surrender of the original Title Deed for payment of the balance of the purchase price, vacant possession and for an eviction order and a permanent injunction.a.For the Declaration either way I don’t see the need to interfere with the Taxing Master’s Figure of Kshs 200,000/= since the bar minimum fee of Declaration of the sale validity of the sale agreement of the value of Kshs 5,000,000/= is already Kshs 200,000/= on the higher side.
2. I find that due to the complexity of the matter Kshs 275,000/= would suffice. Since there was a prayer for injunction, eviction and vacant possession in the counter claim the figure of Kshs 300,000/= was rightfully awarded. For Item No. 2 I grant Kshs. 50,000/=. Kshs 100,000/= is taxed off. For prayer No 3 service fees for getting up for trial should be 1/3 of instruction fee in which case it ought to have been 1/3 of Kshs 350,000/= which I give as Kshs. 120,000/= and tax off Kshs 30,000/=. I will not interfere with the other Items.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 7TH DAY OF JUNE, 2023MUGO KAMAUJUDGEIn the Presence of:-Court Assistant: SibotaPlaintiff: Ms. OpundoDefendants: Mr. Kuria